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President Donald Trump’s nomination of Makan Delrahim to lead the Justice Department’s antitrust division is among the unfinished business facing lawmakers when they return to Washington the week of Sept. 4.
Antitrust isn’t the most pressing issue facing lawmakers, who also must deal with funding the government past Sept. 30 and giving aid to Hurricane Harvey victims. But several antitrust matters pending before Congress are of great interest to practitioners. In particular, the stalled Delrahim nomination is pressing. The current acting head of the antitrust division, Andrew Finch, has been running the agency since February, longer than any acting assistant attorney general.
“Since Delrahim has broad bipartisan support, the delay in his confirmation seems pointless,” Allen Grunes, an antitrust attorney with the Konkurrenz Group in Washington, told Bloomberg BNA. “All the delay is really accomplishing is to hurt the Justice Department and antitrust enforcement over there.”
Delrahim, who was tapped by Trump in March, wasn’t included in a large package of nominations the Senate approved before heading out of town for the August recess. Sen. Elizabeth Warren (D-Mass.) put a “hold” on the nomination, according to Bloomberg News. While Warren did not explain the hold, in April she criticized Delrahim’s nomination in a Facebook post, saying it’s a sign the Trump administration will “put the interests of giant corporations ahead of the American people.”
David Popp, a spokesman for Senate Majority Leader Mitch McConnell (R-Ky.), told Bloomberg BNA last week that the leader has nothing to announce yet on Delrahim, a former lobbyist for Anthem Inc. The Judiciary Committee approved the nomination 19-1 in early June.
The concern that Trump might interfere in merger investigations such as the proposed tie-up between AT&T Inc. and Time Warner Inc. has been a major headache for Delrahim. Senators have repeatedly pressed him to make public promises that he’ll operate independently from the White House if he’s confirmed.
The Federal Trade Commission is also still short-handed, with three vacant commissioner spots and an acting chairman.
Joseph Simons, an antitrust partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, is Trump’s likely choice for chairman and should be formally announced in September, Bloomberg News reported. Trump is also expected to name two other commissioners to fill out the five-member body, a Republican and a Democrat. All those nominees would require Senate approval. If they are confirmed, current acting FTC chairman Maureen Ohlhausen would become a Republican commissioner.
Before the August recess, Sen. Orrin Hatch (R-Utah) urged Democrats to allow swift confirmation of Delrahim and Trump’s yet-to-be named nominee for FTC chairman. He said the lingering antitrust vacancies are causing uncertainty for the business community.
“Critical merger and acquisition activity remains sidelined, as innovation is chilled and expansions are put on hold,” Hatch said in an Aug. 3 speech on the Senate floor. “All of this comes at an unnecessary cost to our businesses and consumers.”
Several antitrust-related bills are also awaiting action, but that’s unlikely to occur in the countdown to the new fiscal year and the end of the congressional session.
FTC Overhaul — House Republicans are engaged in an effort to overhaul the U.S. merger review process by harmonizing conflicting approaches at the FTC and the Justice Department.
In April, the House Judiciary Committee approved a bill (H.R. 659) that would strip the FTC of its ability to subject proposed mergers to administrative litigation. The FTC now has the option of bringing merger cases before an agency administrative law judge or going to court.
The committee approved the bill 16-10 with Democrats opposing. The measure is still waiting for a vote from the full House, but there is no word on when that will happen. Similar legislation was approved by the House in the previous Congress, but it died in the Senate.
Health Insurance — A bill (H.R.372) to subject health insurers to greater antitrust scrutiny gained momentum in the House earlier this year amid the broader Republican push to overhaul the nation’s health-care system. It passed the House by wide margins in March, but the legislation is now stalled in the Senate.
The bill would remove a 70-year-old exemption that has shielded health insurers from prosecution for sharing data, allowing federal enforcers to go after health insurers for conduct such as price fixing and collusion.
The bill is pending before the Senate Judiciary Committee. It’s supported by Consumers Union but opposed by industry groups. America’s Health Insurance Plans says the legislation would expose health insurers to increased liability risks while doing little to improve competition in the marketplace.
Occupational Licensing — Sen. Mike Lee (R-Utah) sponsors legislation to encourage states to minimize the use of licensing for occupations that range from real estate to dog sitting. Such state requirements, bill sponsors say, are stifling entrepreneurship and costing consumers billions of dollars.
The bill (S. 1649), introduced in July, would create a limited antitrust exemption for licensing boards on the condition that certain steps are taken by the state, such as a review of the requirements every five years.
Lee’s bill is pending before the Senate Judiciary Committee. A House companion (H.R. 3446), introduced by Rep. Darrell Issa (R-Calif.), is waiting for committee action as well.
—With assistance from Liz Crampton.
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